1 Filed 12/18/14 P. v. Morrison CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (San Joaquin)

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THE PEOPLE, Plaintiff and Respondent,

v. TROY LORAY MORRISON, Defendant and Appellant. C071790 (Super. Ct. No. LF012360A)

Appointed counsel for defe ndant Troy Loray Morrison as ked this court to review
the record to determine wh ether there are any arguable issues on appeal. ( People v.
Wende (1979) 25 Cal.3d 436 ( Wende ).) Finding no arguable erro r that would result in a disposition more favorable to defe ndant, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
BACKGROUND On December 19, 2010, California High way Patrol Officer Michael Walling was patrolling a section of freeway in San Joaquin Coun ty when he saw de fendant, driving a pick-up truck, weaving from lane to lane and up onto the shoulder. Officer Walling initiated a traffic stop and defe ndant nearly crashed his vehicle as he was exiting the freeway.2 Officer Walling approached defendant an d asked to see his driver’s license. Defendant told Walling he did not have a driver’s license. Walling noticed defendant’s eyes were red and watery, his speech slurre d, and the smell of alcohol was emanating from inside the truck. At Walling’s reque st, defendant stepped out of the truck; defendant admitted to drinking a bottle of wine. Defendant was arrested and subsequently charged with driving under th e influence (Veh. Code, § 23152, subd. (a)), 1 driving with a blood-alcohol level of 0.08 percent or higher (§ 23152, subd. (b)), and driving with a license that was currently suspended for driving under the influence (§ 14601.2, subd. (a)). It was further alleged defend ant had three prior convictions for driving under the influe nce. (§ 23550.) Defendant moved to suppress evidence obta ined at the December 19, 2010, traffic stop. The trial court denied his motion. Defe ndant also filed a pretrial discovery request pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. Th e trial court granted the request in part.
Defendant then moved to strike the a llegation that in September 2001 in Santa Clara County case No. C108803, he was convi cted of driving with a blood-alcohol content at or exceeding 0.08 percent. (§ 23152, subd. (b).) He argued his September
2001 conviction was constitutiona lly invalid because he had not been advised of all his constitutional rights before entering into the plea that led to his conviction. Specifically, defendant argued he was never advised he could challenge his 1996 conviction for driving under the influence, which was alle ged in the Santa Clara County case as a sentencing enhancement. At the initial hearing on defendant’s mo tion to strike, the People presented a certified copy of the misdemeanor complaint in Santa Clara County case No. 0108803, along with a rights waiver and plea form. The trial court admitted those documents into

1 Undesignated statutory refere nces are to the Vehicle Code.3 evidence and found the People met their burden of establishing the prior conviction. The
court then advised defendant the burden wa s his to prove by a preponderance of the
evidence the conviction was constitutionally invalid. In support of his claim, defendant noted on the September 25, 2001, plea form, he
did not initial the box indicatin g he had been advised of his right to challenge the 1996 conviction alleged as a senten cing enhancement; nor did he waive that right. Defendant also submitted a declaration sayi ng he was never advised he ha d the right to challenge the allegation of a prior conviction, and had he been so advised, he would not have entered into the plea. In response, the People argued the minute order, signed by the clerk, was sufficient to show, in fact, defendan t was advised of all his rights.
The trial court then advised defendan t that, according to section 41403, subdivision (b), to meet his burden, defendant was required to produce “ ‘transcripts of the relevant court proceedings at the time of the entry of the defendant’s plea,’ ” and
defendant failed to do so. If there was no tran script from the relevant plea hearing, the court told defendant he needed to produce a declaration from someone at the Santa Clara County Superior Court saying there was no reporte r’s transcript available. The court also noted the “DUI advisement of rights of waiv er plea form” was si gned by defendant and his attorney a month before the plea hearing. This caused the court some concern: “That suggests to me there may have been more said at that heari ng than what was in the form.”
The trial court also raised the issue of laches. The court noted defendant never challenged the validity of his September 2001 conviction, although it was twice alleged as a prior conviction for drivin g under the influence and defend ant twice admitted to it.
The court ruled defendant failed to meet his burden. After further argument from counsel, the trial court set a briefing sche dule to allow defendant and the People to address the issue of laches, and to give de fendant and the People an opportunity to present further evidence.4 Defendant subsequently f iled a letter from Bonita Ann Jessup, a retired court reporter with the Santa Clara County Superior Court, in which Jessup made the following statement: “I am returning your request for a reporter’s transcript regarding the above case on September 25, 2001. All court notes ar e destroyed after 10 years except for death penalty cases. You might check w ith the Clerk’s Office to see if they still have their file. My understanding is before they destroy a file, the whole file is copied onto micro fiche. That would have the court docket and snap -outs from each court appearance.” The People filed a certified copy of th e docket and minutes from defendant’s plea hearing in Alameda County in March 2007. The minutes refl ect that, at that hearing, defendant was fully advised of his constitutional rights, pled no contest to violating section 23152, subdivision (a), and admitted his 2001 conviction in Santa Clara County for violating section 23152, subdivision (b). The People also filed certified copies of documents related to defendant’s conviction for violating secti on 23152, subdivision (b), in Sa n Joaquin County in 2008.
Included in those documents were defendant ’s written plea agreement, the minutes and minute orders from the entry of defendant’s pl ea and sentencing, as well as the complaint
filed in that matter. Those records indi cate defendant was fully advised of his constitutional rights prior to entering his plea. The records also indicate that, as part of his plea agreement, defendant admitted to tw o prior convictions fo r driving under the influence: (1) the 2001 conviction in Sant a Clara County and (2) the 2007 conviction in San Joaquin County.
Defendant then submitted a declaration from Jessup stating all court notes are destroyed after 10 years and she had no record or transcript of the plea. Defendant also
submitted the declaration of his counsel, who said his staff went to the criminal division records department of Santa Clara County Superi or Court and reviewed the file related to defendant’s 2001 plea. Counsel’s staff informed him there were no transcripts of the plea hearing in the file.5 Following submission of the evidence and argument of counsel, the trial court denied defendant’s motion to strike the prior conviction. Defendant then pled no contest to driving with a blood alcohol level at or above .08 percent. The trial court dismissed the remaining charges and granted defenda nt five years’ formal probation. Defendant appeals. His request for a ce rtificate of probable cause was granted.
DISCUSSION We appointed counsel to represent defenda nt on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. ( Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of th e right to file a supplemental brief within 30 days of the date of filing of the opening brief. On Ma y 21, 2013, defendant filed a supplemental brief with this court. In his supplemental brief, defendant cont ends the trial court erred in denying his motion to strike the allegation of a prio r conviction because his 2001 conviction for driving under the influence was constitutio nally infirm. Regardless of whether defendant’s claim has merit, it is barred by collateral estoppel. Collateral estoppel bars relitigation of an issue previously decided “ ‘if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial.’ [Citation.]” ( People v. Lawley (2002) 27 Cal.4th 102, 163; People v. Scott (2000) 85 Cal.App.4th 905, 919.) Following defendant’s co nviction in 2001, defendant twice admitted to that conviction: first in 2007, and again in 2008. In neither of those instances did defendant challenge the constitutionality of his 2001 conviction. The r ecord on appeal establishes that in 2007 and in 2008, de fendant was represented by coun sel at the time of his plea, was advised of all his rights, and personally waived them. Thus defendant has twice6 already admitted the validity of his 2001 co nviction, those judgments are final, and defendant was a party in the prior actions. Under these circumstances, defendant is precluded from now cha llenging the constitutional validity of his 2001 conviction. Having undertaken an examination of th e entire record, we find no arguable error that would result in a dispositi on more favorable to defendant.
DISPOSITION The judgment is affirmed.

HOCH , J.

We concur:

MAURO , Acting P. J.

DUARTE , J.